97-034
No. 97-034
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
LISA L. WELTON,
Plaintiff and Appellant,
v.
SUZANNE LUCAS, LAURETTE MURPHY
and SHELLY ROBBINS,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
R. Russell Plath; Halverson, Sheehy & Plath, Billings,
Montana
For Respondents:
Don M. Hayes; Brown, Gerbase, Cebull, Fulton, Harman & Ross,
Billings, Montana
Submitted on Briefs: April 17, 1997
Decided: June 19, 1997
Filed:
__________________________________________
Clerk
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Justice W. William Leaphart delivered the Opinion of the Court.
Lisa L. Welton (Welton), appeals from the order of the Thirteenth Judicial
District
Court granting Suzanne Lucas, Laurette Murphy, and Shelly Robbinsþ (collectively þthe
Respondentsþ) motion for summary judgment. We reverse and remand.
The following issues are raised on appeal:
1. Where a claimant has pursued a workers' compensation claim against a
corporate employer, does the exclusivity provision of 39-71-411, MCA, preclude a
suit
by the claimant against the corporate shareholders in their capacity as landlords?
2. Did the District Court err in granting summary judgment in favor of Suzanne
Lucas, Laurette Murphy and Shelly Robbins?
BACKGROUND
Welton was injured as a result of a workplace accident at Cono-Mart in
Billings.
Welton contends that she fell and was injured after tripping over a pipe located on
the
floor of the stockroom behind the beer and soda coolers where cases of beer and soda
are
stored; the stockroom was illuminated by light coming through the glass cooler
doors.
Welton claimed that she knew that the pipe was on the floor but due to poor lighting
had
difficulty seeing and, as a result, she tripped over the pipe on the floor while
stocking
shelves as part of her employment with G. M. Petroleum Distributors (G. M.
Petroleum).
Following the incident, Welton filed for and received workers' compensation
benefits.
She then filed the present suit against the owners of the property.
At the time of the accident, Welton was an employee of G. M. Petroleum, a
closely held corporation that operates Cono-Mart. R. M. Grunstead, William Grunstead
and the Respondents are the only shareholders of G. M. Petroleum. In addition to
being
shareholders of G. M. Petroleum, R. M. Grunstead, William Grunstead and the
Respondents are the owners of the property and building which is leased by G. M.
Petroleum and where Welton suffered her injury. R. M. Grunstead owns 50% of the
building; William Grunstead and the Respondents own the remaining 50%.
In her complaint, Welton alleges that the Respondents, as owners of the
building,
were negligent in allowing a dangerous condition to remain on their premises. It
appears
that the District Court granted summary judgment against Welton under two theories.
First, the court held that the Respondents were protected from liability by the
exclusive
remedy rule under 39-71-411, MCA. Second, the court held that summary judgment
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was appropriate because Welton knew the pipe existed while the Respondents were
unaware of the situation.
DISCUSSION
This Courtþs standard of review in appeals from summary judgment rulings is de
novo. Motarie v. Northern Montana Joint Refuse Disposal District (1995), 274 Mont.
239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872
P.2d 782. When we review a district courtþs grant of summary judgment, we apply the
same evaluation as the district court based on Rule 56, M.R.Civ.P. Bruner v.
Yellowstone County (1995), 272 Mont. 261, 900 P.2d 901. In Bruner, we set forth our
inquiry:
The movant must demonstrate that no genuine issues of material fact exist.
Once this has been accomplished, the burden then shifts to the non-moving
party to prove, by more than mere denial and speculation, that a genuine
issue does exist. Having determined that genuine issues of fact do not
exist, the court must then determine whether the moving party is entitled to
judgment as a matter of law. We review the legal determinations made by
a district court as to whether the court erred.
Bruner, 900 P.2d at 903 (citations omitted).
1. Where a claimant has pursued a workers' compensation claim against a
corporate employer, does the exclusive remedy provision of 39-71-411, MCA, preclude
a suit by the claimant against the corporate shareholders in their capacity as
landlords?
The standard of review of a district courtþs conclusions of law is whether the
courtþs interpretation of the law is correct. Carbon County v. Union Reserve Coal
Co.
(1995), 271 Mont. 459, 469, 898 P.2d 680, 686. See also Kreger v. Francis (1995),
271
Mont. 444, 898 P.2d 672.
Since R. M. Grunstead and William Grunstead were co-employees of Welton, the
court dismissed them as defendants pursuant to 39-71-412, MCA. Welton has not
appealed from that dismissal.
The District Court held that the Respondents (Lucas, Murphy and Robbins), as
shareholders of G. M. Petroleum, were entitled to dismissal of Weltonþs claim by
virtue
of the exclusive remedy rule under 39-71-411, MCA. Section 39-71-411, MCA,
states:
For all employments covered under the Workers' Compensation Act or for
which an election has been made for coverage under this chapter, the
provisions of this chapter are exclusive. Except as provided in part 5 of
this chapter for uninsured employers and except as otherwise provided in
the Workers' Compensation Act, an employer is not subject to any liability
whatever for the death of or personal injury to an employee covered by the
Workers' Compensation Act or for any claims for contribution or indemnity
asserted by a third person from whom damages are sought on account of
such injuries or death. The Workers' Compensation Act binds the
employee himself, and in case of death binds his personal representative and
all persons having any right or claim to compensation for his injury or
death, as well as the employer and the servants and employees of such
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employer and those conducting his business during liquidation, bankruptcy,
or insolvency.
To the extent that the District Court's grant of summary judgment was based upon the
exclusive remedy provision of 39-71-411, MCA, it was in error. Welton is asserting
a claim against the Respondents in their capacity as landowners, not as shareholders
in
G. M. Petroleum. Lucas, Murphy and Robbins, as individuals, were not employers of
Welton nor were they employees of G. M. Petroleum. The fact that they own stock in
G. M. Petroleum does not alter their separate and distinct status as landowners.
They
are in no better a position than any other landowner who leases property to G. M.
Petroleum. As landlords of the property leased by G. M. Petroleum, they are
strangers
to the employment relationship and the exclusive remedy provision does not inure to
their
benefit. The District Court erred in granting summary judgment to the Respondents
Lucas, Murphy and Robbins on the basis of the exclusive remedy provision of 39-71-
411, MCA.
2. Did the District Court err in granting summary judgment in favor of Suzanne
Lucas, Laurette Murphy and Shelly Robbins?
In granting summary judgment, the District Court held:
Suzanne Lucas, Laurette Murphy, and Shelly Robbins are not employees
at Cono-Mart, and they do not live in the state. They signed Powers of
Attorney over to their father to manage the daily operations of the business
and property. The daughters could not have been negligent because they
did not know the pipe existed. [Emphasis added.]
The court relied on our decision in Buskirk v. Nelson (1991), 250 Mont. 92, 818
P.2d 375, for the proposition that a property owner is not liable for negligence when
he/she does not have knowledge about the defect which causes the injury. In Buskirk,
Buskirk was helping his friend, Donald Nelson, install a garage door opener for
Nelson's
mother, Adeline Nelson. While they were testing the door opener, it became jammed
and the bottom rail on the north end of the door cracked. Buskirk, 818 P.2d at 377.
Buskirk was aware that a similar crack in the south end of the door had been repaired
with metal strapping so he attempted to repair the new crack in a similar fashion.
During
this repair process, the spring-loaded mechanism of the door broke loose, resulting
in
severe injury to Buskirk's eye. Recognizing that the possessor of land is not an
insurer
against all accidents and injuries to invitees on the premises, Buskirk, 818 P.2d at
380,
we held as follows:
All three of the appellant's experts agreed that the cause of the
accident was the cracking of the garage door which took place just prior to
the time of the accident. As a matter of law, Adeline Nelson, who was not
present when the door cracked, could not be held liable for failure to warn
about something of which she had no knowledge.
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We find Buskirk to be distinguishable from the facts of this case. In Buskirk,
the
timing of the crack was such that Adeline Nelson not only did not know of the
situation,
but she could not have known nor would she have had any opportunity to warn anyone
of the situation. That is not the case in the present appeal. Respondents Lucas,
Murphy
and Robbins each submitted affidavits that their only contact with the store was as
customers, that they had not been in the cooler and that they were not aware of the
existence of the pipe. Property owners owe a duty of ordinary care to keep the
premises
reasonably safe and to warn people of any hidden or lurking dangers. Cooper v.
Sisters
of Charity of Leavenworth Health Services, Corp. (1994), 265 Mont. 205, 875 P.2d
352.
Although landowners are not insurers of the safety of their property, Limberhand v.
Big
Ditch Company (1985), 218 Mont. 132, 144,706 P.2d 491, 499, it does not follow that
landowners can avoid liability by merely stating that they have never been in the
room
in question and that they were unaware of the alleged hazard. Such a holding would
encourage landowners to avert their eyes and to maintain a state of ignorance as to
the
state of their property. In Buskirk there was evidence that the crack occurred
suddenly,
shortly before the injury in question, while Adeline Nelson was not present and that
the
cause was not something þthat an ordinary landowner would have expertise in . . . .þ
Buskirk, 818 P.2d at 380.
In the present case, there is nothing indicating that the presence of the pipe
was
a sudden occurrence or was something which the Respondents (or their managing agent)
would not have seen had they chosen to look. Furthermore, that a pipe on the floor
in a
work/traffic area presents a potential hazard is not something that requires
particular
expertise. Although Respondents have testified that they were not aware of the pipe,
questions of fact remain as to whether they should have been aware of the pipe and
whether they should have provided adequate lighting in the cooler or rearranged the
shelving.
In Brown v. Demaree (1995), 272 Mont. 479, 901 P.2d 567, we reversed a
summary judgment in a case in which the plaintiff alleged that the defendant was
negligent in failing to maintain and illuminate his sidewalk.
Here, then, the critical issue is whether Demareeþs failure to
illuminate his sidewalk or to warn of the sidewalk/step-down/landing
arrangement constituted a breach of his duty to use ordinary care in
maintaining his premises in a reasonably safe condition and to warn of any
hidden or lurking dangers. While the trial court resolved that question as
a matter of law in favor of Demaree, whether Demaree breached his duty
was one of fact which should have been determined by the jury.
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Brown, 901 P.2d at 570.
We went on to conclude:
Whether the sidewalk/step-down/landing arrangement in Demaree's
sidewalk is "unusual," and whether he should have anticipated or had
reason to believe that a person using the sidewalk in the darkness would be
injured by stepping into the unlighted drop-down, are clearly factual
questions which should have been resolved by the jury, and not by the trial
court. See Limberhand, 706 P.2d at 499.
Brown, 901 P.2d at 571.
The same is true here. The question of whether Respondents breached their duty
to use ordinary care in maintaining their premises in a reasonably safe condition is
one
of fact properly left for the jury to resolve.
Respondents contend that the fact that Welton knew of the existence of the pipe
absolves them of any liability for her injuries. They cite Kronen v. Richter
(1984), 211
Mont. 208, 683 P.2d 1315, for the proposition that a property owner is entitled to
assume
that people will see and observe that which would be obvious through reasonably
expected use of an ordinary person's senses, and Limberhand v. Big Ditch Company
(1985), 218 Mont. 132, 144-45, 706 P.2d 491, 499, for the proposition that a property
owner's duty is satisfied if the hazardous condition is obvious or actually known.
This
rule, however, is not absolute as we recognized in Kronen wherein we cited
Restatement (Second) of Torts 343 A(1) (1965):
A possessor of land is not liable to his invitees for physical harm
caused to them by any activity or condition on the land whose danger is
known or obvious to them, unless the possessor should anticipate the harm
despite such knowledge or obviousness. [Emphasis added.]
Although Welton may have been aware of the pipe, she alleged in her second amended
complaint that she was unable to observe the pipe due to inadequate lighting in the
cooler.
Further, Welton, who was shelving beer at the time of the accident, testified in her
deposition that: "And with the stuff being stacked as high as it is, when there's no
lighting, you could faintly, faintly see the pipe--you knew it was somewhere in that
area--
while stocking." Given the existence of a pipe on a floor in a dimly lit traffic
area where
it is known that workers will be carrying and shelving products, there is a question
of fact
as to whether the possessor of the land should anticipate harm despite the
obviousness of
the pipe or despite Welton's knowledge of the pipe.
The summary judgment is reversed.
/S/ W. WILLIAM LEAPHART
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We concur:
/S/ JAMES C. NELSON
/S/ WILLIAM E. HUNT, SR.
/S/ TERRY N. TRIEWEILER
/S/ KARLA M. GRAY
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